Deprivation of liberty and disability- its meaning and (il)legitimacy?

A report has just been published by the UN Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas, on ‘Ending the deprivation of liberty on the basis of disability.”[1] In 18 pages, the Special Rapporteur seeks to outline the scope of the problem of deprivation of liberty on the basis of disability world-wide, its causes, as well as a set of recommendations to end it. The examples she gives of what – on any view – are human rights abuses in a wide range of situations are compelling, and the call to action loud and clear. None of what follows is intended to detract from endorsing the central message that much can, and should, be done. Rather, it picks up, first, the report’s discussion of the meaning of deprivation of liberty as very timely in relation to England & Wales, and second, digs into the difficult issues that arise because of the (over)reach of the Special Rapporteur’s challenge to the justifications advanced for deprivation of liberty.

The meaning of ‘deprivation of liberty’

For readers in England & Wales, the report comes at an interesting time, in the context of the last stages of the passage of the Mental Capacity (Amendment) Bill, which will – all other being equal – introduce a statutory definition of deprivation of liberty. In this context, I note the working definition given by the Special Rapporteur for purposes of Article 14 CRPD (at page 9):

Deprivation of liberty involves a more severe restriction on physical freedom than mere interference with liberty of movement. Individuals are deprived of their liberty when they are confined to a restricted space or placed in an institution or setting, not free to leave, and without free and informed consent. Examples of deprivation of liberty include police custody, pretrial detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization, and placement of children in institutional care. They also include certain further severe restrictions on liberty, for example, solitary confinement or the use of restraints.

This looks similar to the ‘acid test’ applied for purposes of Article 5 ECHR by the Supreme Court in Cheshire West, although applied through a prism which effectively sets up a presumption that placement in an institution will amount (absent consent) to a deprivation of liberty. Although the Special Rapporteur is particularly concerned about placements in institutions and hospitals, she also notes (earlier in the report, at page 6) that

Deprivation of liberty of persons with disabilities at home is not a practice limited to low-income settings. In most parts of the world, many children with disabilities are systematically locked up at home, with little or no interaction with the community. Many adults with disabilities living in supported housing are also in practice deprived of their liberty, as they are not free to leave the house. Similarly, older persons with dementia are frequently impeded from leaving their own homes purportedly for their own safety.

What this discussion leaves unaddressed is:

Whether MIG (in Cheshire West) should be considered to be deprived of her liberty with her foster mother – at which point, on the logic developed later in the report, such would be automatically unlawful. The tenor of the balance of the report suggests that this is unlikely, but the silence is tantalising. Does the answer lie in thinking more broadly about what might constitute ‘valid consent’ (as I have suggested elsewhere it might)?

Whether the Court of Appeal was entitled in Ferreira (in a decision whose reasons were endorsed by the Supreme Court in refusing permission) to limit the scope of the meaning of deprivation of liberty in the hospital setting in the context of the delivery of physical healthcare. The Government’s intention is to place this definition on a statutory footing.

Of course, the Special Rapporteur is not concerned with the ECHR but the UN human rights instruments, and it is entirely possible (if slightly counter-intuitive) that a disabled person may be deprived of their liberty for purposes of Article 5 ECHR, but not for purposes of the CRPD. We may – or may not – get answers to this question when the CRPD Committee next comes to scrutinise the compliance of the United Kingdom with the CRPD; it is just a shame that we didn’t get them in time for Parliament to consider them at the last stages of the Mental Capacity (Amendment) Bill.

The CPRD and other international treaties

The report does not merely report, but seeks to argue a case. This is clearest in the section on the normative content of the CRPD and its impact on international and regional standards, in which the Special Rapporteur seeks to take on both those parts of the UN system (such as the Human Rights Committee) and regional bodies (such as the European Court of Human Rights) who do not share her/the Committee’s interpretation of Article 14(1)(b) CRPD that “the existence of a disability shall in no case justify a deprivation of liberty.” The Special Rapporteur and the Committee consider that this means that deprivation of liberty is not justified even where the basis is not the disability per se, but the risk that the person is then said to be at, or to pose, in consequence. The Human Rights Committee – as set out below – does not share this view; nor does the European Court of Human Rights.[2] The Special Rapporteur’s need to argue her case is clear from the parting shot at the very end of the report:

The Special Rapporteur also recommends that the United Nations system enhance its capacities and adequately consider the standards on the right to liberty and security of persons upheld by the Convention on the Rights of Persons with Disabilities in all its work, including when supporting the legislative and policy reforms of States.

In other words, the Special Rapporteur is saying, the rest of the UN system needs to adopt the interpretation of Article 14(1)(b) CRPD set out by the Committee.

Given the approach taken here, I would, as a nerd, point out with respect that it is somewhat problematic to state (at page 13) that:

The Convention for the Protection of Human Rights and Fundamental Freedoms from 1950 constitutes the only human rights instrument at either the regional or global level that contemplates an exception to the right to liberty and security based on impairment (art. 5 (1) (e))

This is true, but only half the picture. The International Covenant on Civil and Political Rights provides (in Article 9) that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

As was pointed out by Australia, Denmark, France, Lebanon and the UK in the early debates (in 1949) on what ultimately became the ICCPR, the words ‘as established by law’ “although intended as a safeguard against abuse, do not appear to be effective for that purpose… any dictator would be prepared to accept such an Article.”[3] The drafting of the ECHR, by contrast, proceeded on the basis that “it is possible… to define all the limitations of [the right to liberty] which contracting States can reasonably require, in a form that is both brief and comprehensive.” The Strasbourg court has repeatedly emphasised that the justifications for possible deprivation of liberty contained in Article 5(1) EHCR are exhaustive.

In other words, what is explicit in the ECHR (in Article 5(1)(e) is implicit in the ICCPR because of the different philosophies underpinning their drafting. In the circumstances, it is not surprising that the Human Rights Committee’s General Comment No 35 on Article 9 ICCPR took the position (at paragraph 19) that “[t]he existence of a disability shall not in itself justify a deprivation of liberty but rather any deprivation of liberty must be necessary and proportionate, for the purpose of protecting the individual in question from serious harm or preventing injury to others.”

At one level, it is difficult to criticise the Rapporteur for the approach that she has taken here. She, and the Committee, are not engaged in an interesting academic discussion, but a campaign to persuade international, regional and national bodies of the rightness of their cause. Some short-circuits are therefore perhaps permissible – even if frustrating for pedants.

The moral arguments

But how about the bigger picture – what might be called the moral argument for the interpretation that the Special Rapporteur wants to give of Article 14(1)(b) CRPD? Those arguments become all the more necessary if – as in reality I would suggest is the case – the treaty interpretation arguments do not, in fact, get her home.

When it comes to detention on the basis of asserted risk of harm to others, the Special Rapporteur is on firm ground challenging the automatic linkage of (mental) disability to harm to others that is all too often made, and the resulting immediate recourse to (often preventative) detention. In reality, it is unlikely that she is going to make rapid traction with governments in terms of persuading them to secure reforms that simply abolish detention on this basis. What is most likely, I anticipate, at least in states in the ECHR zone, is that there will be a move towards limiting such detention to circumstances where the person lacks mental capacity to decide upon the care and treatment that they need. But that, of course, would not satisfy the CRPD Committee or the Special Rapporteur, given their rejection of the validity of the concept of mental capacity. The moral arguments, however, become much more complex at that point.

The arguments become even more complex in relation to the moral obligations on states towards persons with disabilities that drive towards imposing restrictions in their liberty in some situations. Those moral obligations have been cast into positive obligations in human rights treaties, including, importantly, the CRPD. Most obviously, they derive not merely from the right to life (secured in the CPRD) under Article 10), which carries with it positive obligations,[4] but also the specific obligation imposed upon states by Article 16 to secure disabled people from exploitation, violence and abuse.

It is certainly legitimate to argue that there are no circumstances under which it is ever legitimate to direct measures against the disabled person to secure them against risks posed by others (in other words, the obligation under Article 16 should be interpreted as only ever extending to taking steps – for instance – to prosecute perpetrators of abuse).

But this argument does not work when it comes to the risk that the person is thought to pose to themselves if not subject to the restrictions in question. As I’ve discussed recently here, it is undoubtedly the case that there can – and should – be a rebalancing in terms of the calibration of risk, and that the default reaction to (say) a risk of suicide in a person should not be required to be detention. It is, however, fair to say that many – and not just professionals invested in the system – still require convincing that there can be no circumstances under which the risk that a person in mental health crisis is posing to themselves can justify their detention. The answer that I suspect that the Special Rapporteur would give – i.e. that it is incumbent upon states to take all the steps required to ensure that a person is never so unsupported in such crisis that the only option may have to be detention – is undoubtedly both a worthy aspiration and one to which I would suggest all professionals would be likely to subscribe. But it is a considerable leap to move from an injunction on states to provide supports to an assertion that, with such supports, it is impossible for crises to occur such that no state should be entitled to have in place legal mechanisms to take steps to respond to such crises.

It is, moreover, an even greater leap simply to say that under no circumstances is it ever justified to take steps to prevent a person with dementia from leaving their own home to secure them against the risk that they pose to themselves – the position that the report must defend given that this is given as a specific example of deprivation of liberty. It is striking that none of the recommendations set out at the end of the report, in fact, address how such a situation could be prevented. I suspect that this is because it is simply not possible, in fact, to advance a proper case to this end – either legally or morally. I also rather suspect that, in reality, the Special Rapporteur and the Committee would try to find a way to say such a person was not, in fact, deprived of their liberty at all. That, of course, will require some interesting intellectual gymnastics on their part to explain how ‘free and informed consent’ is to be given in such circumstances.

Ultimately, therefore, the report speaks loudest and most persuasively to the most obviously egregious situations, but does not, in fact, provide the answers to the truly morally hard cases. To that end, the report ends up in a similar place to the approach taken by the Committee to legal capacity under Article 12 CRPD, and is therefore both equally inspiring as a goad to action and equally frustrating as a guide.

[1] A version of a report presented at the 40th session of the Human Rights Council, that version being available here.

[2] On this, see also Annex B to the report of the independent Review of the Mental Health Act 1983 and the report upon the views of relevant UN bodies as to involuntary detention and treatment prepared by Dr Sándor Gurbai and Prof Wayne Martin of the Essex Autonomy Project.

[3] Taken from the travaux préparatoire to Article 5 of the ECHR, available here.

[4] By parity of reasoning with the approach taken under the right to life under Article 6 ICCPR: see, most recently, General Comment 36 adopted by the Human Rights Council on 30 October 2018, especially paragraphs 7, 9, 21 and 24. The same approach is also taken under the ECHR: see, most recently, Fernandes de Olivera v Portugal [2019] ECHR 106.

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